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Session 2002 - 03 Publications on the internet Other Bills before Parliament Arrangement of Clauses (Contents)

Sexual Offences Bill

THESE NOTES REFER TO THE SEXUAL OFFENCES BILL [HL] AS BROUGHT FROM THE HOUSE OF LORDS ON 18TH JUNE 2003 [HL BILL 128]       SEXUAL OFFENCES BILL EXPLANATORY NOTES INTRODUCTION 1.     These explanatory notes relate to the Sexual Offences Bill as brought from the House of Lords on 18th June 2003. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. BACKGROUND 3.     The Government published the White Paper Protecting the Public: strengthening protection against sex offenders and reforming the law on sexual offences' (Cm 5668) in November 2002. It is available on the Home Office website at www.sexualoffencesbill.homeoffice.gov.uk. The White Paper set out the Government's intentions for reforming the law on sexual offences and for strengthening measures to protect the public from sexual offending. The Government's proposals are based on the recommendations made by two review teams and subsequent public consultation. The recommendations made by the review teams were published in two documents: Review of Part 1 of the Sex Offenders Act 1997 (2001) and Setting the Boundaries (2000). These together with a summary of the public's responses and the Government's response to each of the recommendations can also be found at www.sexualoffencesbill.homeoffice.gov.uk SUMMARY 4.     The Bill is in three Parts: Part 1 makes new provision about sexual offences. It covers the non-consensual offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. It sets out presumptions about the complainant's lack of consent and the defendant's [Bill 128—EN]53/2 lack of reasonable belief in consent that apply to these offences. It covers child sex offences and offences involving an abuse of a position of trust towards a child. Familial child sex offences and offences involving adult relatives are provided for, as are offences designed to give protection to persons with a mental disorder or a learning disability. The age of a "child" in the Protection of Children Act 1978 has been amended to 18 and exceptions are provided for in the child pornography offences where the child was 16 or over and consented. It covers offences relating to prostitution, child pornography, and trafficking. It provides for preparatory offences, such as administering a substance with intent to commit a sexual offence, and a number of miscellaneous offences, such as voyeurism and intercourse with an animal. Clause 73 provides that there is extra-territorial jurisdiction for most offences in Part 1 committed against a child under 16. Finally, Part 1 gives a statutory definition of "consent" and "sexual" activity and touching. The part extends to England and Wales and some provisions also extend to Northern Ireland. Part 2 contains measures for protecting the public from sexual harm. Part 1 of the Sex Offenders Act 1997 has been re-enacted with a number of amendments. A notification order enabling the notification requirements to be applied to offenders with convictions abroad has been created. Sex Offender Orders (s.2 of Crime and Disorder Act 1998) and restraining orders (s.5 of Sex Offenders Act 1997) have been combined into a new civil preventative order - a Sexual Offences Prevention Order. Risk of Sexual Harm Orders, specifically designed to protect children from sexual harm, have been created, as have foreign travel orders, which can be used to prevent an offender with a conviction for a sex offence against a child from travelling to countries where he is at risk of abusing children. Part 2 extends to England and Wales and Northern Ireland, and, save for the Risk of Sexual Harm Orders, to Scotland. Part 3 contains general provisions relating to the Bill, including minor and consequential amendments and commencement provisions. COMMENTARY ON CLAUSES Part 1: Sexual Offences Clause 1: Rape      5.     Clause 1 makes it an offence for a person (A) intentionally to penetrate with his penis the vagina, anus or mouth of another person (B) without that person's consent if A does not reasonably believe that B consents. Subsection (2) provides that whether a belief in consent is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. This and the offence in clause 6 are the sole offences that can only be committed by a male, because they relate to penile penetration. Subsection (3) provides that clauses 76 and 77 apply to this offence. Clauses 76 and 77 deal with rebuttable and conclusive presumptions as to consent Clause 2: Anonymity of defendant in rape etc. cases 6.     Clause 2 provides that a defendant charged with an offence of rape will be granted the same right to anonymity as the victim of the alleged offence. Clause 3: Assault by penetration      7.     Clause 3 covers the situation where a person (A) intentionally penetrates the vagina or anus of another person (B). The offence is committed where the penetration is by a part of A's body (for example, a finger) or anything else, (for example, a bottle); where the penetration is sexual (as defined in clause 79), so that it excludes, for example, intimate searches and medical procedures; where B does not consent to the penetration; and where A does not reasonably believe that B consents. What is said in the note to clause 1 about whether a belief in consent is reasonable also applies here. This and all subsequent offences in the Bill save the offence at clause 6 can be committed by a male or female, against a male or female. Subsection (3) provides that clauses 76 and 77 apply to this offence. Clauses 76 and 77 deal with rebuttable and conclusive presumptions as to consent. Clause 4: Sexual assault      8.     Clause 5 makes it an offence for a person (A) intentionally to touch sexually another person (B) without that person's consent, if he does not reasonably believe that B consents. What is said in the note to clause 1 about whether a belief in consent is reasonable also applies here). "Touching" is defined at clause 80(6); "sexual" is defined at clause 79. The effect of the definitions is that the offence covers a wide range of behaviour including, for example, rubbing up against someone's private parts through their clothes for sexual gratification. Subsection (3) provides that clauses 76 and 77 apply to this offence. Clauses 76 and 77 deal with rebuttable and conclusive presumptions as to consent. Clause 5: Causing a person to engage in sexual activity without consent      9.     Clause 5 makes it an offence for a person (A) intentionally to cause another person (B) to engage in sexual activity (as defined in clause 79) without that person's consent, if he does not reasonably believe that B consents. What is said in the note to clause 1 about whether a belief in consent is reasonable also applies here. A may cause B to engage in sexual activity with A (for example, a woman who compels a man to penetrate her); on B himself (for example, where one person forces a second to masturbate); or with another person (for example, where one person requires someone to masturbate a third person). Subsection (3) provides that clauses 76 and 77 apply to this offence. Clauses 76 and 77 deal with rebuttable and conclusive presumptions as to consent. Clause 6: Rape of a child under 13 10.     Clause 6 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under the age of 13. Whether or not the child consented to this act is irrelevant. Clause 7: Assault of a child under 13 by penetration 11.     Clause 7 makes it an offence for a person intentionally to penetrate sexually the vagina or anus of a child under the age of 13 with a part of his body, such as a finger, on anything else, such as bottle or other object. The penetration must be sexual, as defined in clause 79. Whether or not the child consented to the act is irrelevant. Clause 8: Sexual assault of a child under 13 12.     Clause 8 makes it an offence for a person to touch sexually a child under the age of 13. The definitions of touching and sexual are the same as for clause 4. Whether or not the child consented to the act is irrelevant Clause 9: Causing or inciting a child under 13 to engage in sexual activity 13.     Clause 9 makes it an offence for a person intentionally to cause or incite a child under the age of 13 to engage in sexual activity. In relation to caused sexual activity, the offence covers the same situations as clause 5 except that, for this offence, whether or not the child consented to engaging in the sexual activity is irrelevant. The clause also covers the situation where incitement takes place but the sexual activity itself does not. For example, A may incite the child to engage in sexual activity with A (for example, where A incites the child to masturbate him), on the child himself (for example, where A incites the child to strip for A's sexual gratification) or with a third person (for example, where A incites the child to have sexual intercourse with A's friend). Clause 10: Sexual activity with a child      14.     Clause 10 makes it an offence for a person aged 18 or over intentionally to sexually touch a child under 16. Where the child is between 13 and 15, the prosecution must prove that A did not reasonably believe that he was 16 or over. This does not apply where the child is under 13. "Touching" is defined at clause 80(6) and covers all forms of physical contact including penetration; "sexual" is defined at clause 79. Whether or not the child consented to the activity is irrelevant. Clause 11: Causing or inciting a child to engage in sexual activity 15.     Clause 11 makes it an offence for a person (A) aged 18 or over, intentionally to cause or incite a child aged under 16 to engage in sexual activity (as defined at clause 79). Where the child is between 13 and 15, the prosecution must prove that A did not reasonably believe that he was 16 or over. This does not apply where the child is under 13. The caused sexual activity may be carried out on A (for example, where A causes the child to have sexual intercourse with him), on the child himself (for example, where A causes the child to strip for A's sexual gratification) or on a third person (for example, where A causes the child to have sexual intercourse with A's friend). The offence is also committed where incitement takes place but the sexual activity itself does not. Whether or not the child consented to the activity is irrelevant. Clause 12: Engaging in sexual activity in the presence of a child 16.     Clause 12 makes it an offence for a person (A) aged 18 or over intentionally to engage in sexual activity (as defined in clause 79) in the presence of a child aged under 16 to obtain sexual gratification. Where the child is between 13 and 15, the prosecution must prove that A did not reasonably believe that he was 16 or over. This does not apply where the child is under 13. The offence is committed if A knows or believes that the child is aware that he is engaging in the activity or intends that the child should be aware of this. This offence would cover, for example, A masturbating himself in front of a child, or A masturbating himself in the presence of the child to whom he is describing what he is doing, perhaps because the child is covering his face. Clause 13: Causing a child to watch a sexual act 17.     Clause 13 makes it an offence for a person (A) intentionally to cause a child aged under 16, for the purpose of the sexual gratification of A, to watch a third person engaging in sexual activity or to look at a photograph or pseudo-photograph of a person engaging in sexual activity. Where the child is between 13 and 15, the prosecution must prove that A did not reasonably believe that he was 16 or over. This does not apply where the child is under 13. The definition of sexual activity is at clause 79. Photograph and pseudo-photograph are defined by reference to the Protection of Children Act 1978 (clause 80(5)). A person who, for his own sexual gratification, forces a child to watch two people have sex or who forces a child to watch a pornographic film, would commit this offence. Clause 14: Child sex offences committed by children or young persons 18.     Clause 14 makes it an offence for a person aged under 18 to do anything that would be an offence under any of clauses 10 to 13 if he were aged 18 or over. The purpose of this offence is to provide a lower penalty where the offender is aged under 18. Clause 15: Arranging or facilitating commission of a child sex offence 19.     Clause 15 makes it an offence for a person intentionally to arrange or facilitate any action which he intends to do, intends another person to do or believes that another person will do, which will involve an offence being committed against a child under any of clauses 10 to 14. An example of the first two limbs of the offence is where the person approaches an agency requesting the agency to procure a child for sex either for himself or for a friend. The offence is committed whether or not the sex takes place. An example of the third limb of the offence is where a person intentionally drives another person (X) to meet a child with whom he knows X is going to have sex. He may not intend X to have child sex, but he believes that X will do so if he meets that child. Subsection (2) provides an exception for a person falling only within the third limb of the offence who acts to protect the child. Subsection (3) defines the concept of acting for the protection of the child as acting to protect a child from pregnancy or sexually transmitted infections, to protect the physical safety of a child or to promote the emotional well-being of a child by the giving of advice. The exception only applies provided that the person is not causing or encouraging an activity that would constitute an offence under clauses 10 to 14. An example would be where a health worker believes that a person is having sex with a child under 16. He advises that it is unlawful to have sex with children under 16 but supplies him with condoms because he believes that the person will otherwise have sex without using any protection. Clause 16: Sections 10 to 15: marriage exception 20.     Clause 16 provides a defence of marriage with respect to clauses 10 to 14. The effect is that A is not guilty of one of these offences if he proves that he and the child were lawfully married at the time of the alleged offence, the activity involved solely A and the child and did not involve a photograph or pseudo-photograph (defined in clause 80) of any other person engaged in sexual activity. Thus A will have a defence if he proves he was lawfully married to a 15 year old at the time he had sexual intercourse with her. This might arise, for example, where they are foreign nationals who were married in another country. However, there is no defence if the conduct involves others, for example, A causes his wife aged 15 to engage in sexual activity with other men. Clause 16 also applies to the arranging or facilitating offence (clause 15). Thus a person who arranges or facilitates child sex between two people who are married to each other will not commit an offence under clause 15. Clause 17: Meeting a child following sexual grooming etc.      21.     Clause 17 makes it an offence for a person (A) aged 18 or over to meet intentionally or to travel with the intention of meeting a child aged under 16 in any part of the world, if he has met or communicated with that child on at least two earlier occasions, and intends to commit a "relevant offence" against that child either at the time of the meeting or on a subsequent occasion. An offence is not committed if A reasonably believes the child to be 16 or over. The clause is intended to cover situations where an adult establishes contact with a child for example through meetings, telephone conversations or communications on the Internet with the intention of gaining the child's trust and confidence so that he can arrange to meet the child for the purpose of committing a "relevant offence" against the child. The course of conduct prior to the meeting may have an explicitly sexual content, such as the defendant entering into conversations with the child about the sexual acts he wants to engage her in when they meet or sending images of adult pornography. However, the meetings or communication need not have an explicitly sexual content and could for example simply be A giving the child swimming lessons or meeting her incidentally through a friend. The offence will be complete either when A meets the child or when he travels to the pre-arranged meeting with the intent to commit a relevant offence against the child. The planned offence does not have to take place. The evidence of the intent may be drawn from the communications between A and the child before the meeting or may be drawn from other circumstances, for example A travels to the meeting with ropes, condoms and lubricants. Subsection (2)(a) provides that A's previous meetings or communications with the child can have taken place in or across any part of the world. This would cover for example A emailing the child from abroad, A and the child speaking on the telephone abroad or A meeting the child abroad. The travel to the meeting itself must at least partly take place in England or Wales or Northern Ireland. Clause 18: Abuse of position of trust: sexual activity with a child Clause 19: Abuse of position of trust: causing or inciting a child to engage in sexual activity Clause 20: Abuse of position of trust: sexual activity in the presence of a child Clause 21: Abuse of position of trust: causing a child to watch a sexual act 22.     These clauses re-enact and amend the offence of abuse of position of trust under sections 3 and 4 of the Sexual Offences (Amendment) Act 2000. The clauses each provide that it is an offence for a person (A) aged 18 or over to intentionally behave in certain sexual ways in relation to a child aged under 18, where A is in a position of trust (as defined in clause 23) in respect of the child. The prohibited behaviour in each of the clauses is identical to that prohibited by the child sex offences in clauses 10,11,12 and 13 respectively, except that for the abuse of position of trust offences, the child may be 16 or 17. Except where the child is under 13, one of the requirements of the offence is that A does not reasonably believe that the child is 18 or over, and A is subject to an evidential burden in relation to this aspect of the offence (subsection (3) of each clause). An evidential burden means that, unless A shows from the evidence that there is an arguable case as to whether he reasonably believed the child to be 18 or over, it is presumed that he did not reasonably believe this. Where the child is under 13, the offence is committed regardless of any belief A might have in relation to the child's age. The effect of subsection (1)(d) (or in the case of clause 20, subsection (1)(e)) is that, where A is in a position of trust by virtue of one of the first 4 categories of position of trust set out at clause 23, the prosecution must prove, in addition to the other requirements, that he knew or could reasonably have been expected to know that he was in a position of trust with the child. Subsection (4) of each clause puts an evidential burden on A in this respect. This means that, unless A shows from the evidence that there is an arguable case as to whether or not he knew or could reasonably have been expected to know of the position of trust, it is presumed that he did know or could reasonably have been expected to know this. The first 4 categories of position of trust all concern situations where A looks after persons under 18 at an institution and the child is at that institution. This subsection is designed to cover cases where for example the institution where A works is very large or has a number of different sites, and A may not therefore know that the child is at the institution. Clause 23: Positions of trust Clause 24: Positions of trust: interpretation 23.     Clause 23 defines "position of trust" for the purposes of the offences in clauses 18, 19, 20, 21. The majority of the conditions in subsections (2) to (8) use the term "looks after". This term is defined, in broad terms, at subsection (2) of clause 24. The term "looks after on an individual basis" is also defined - at subsection (3) of that clause. Subsection (1) of clause 23 also provides a power for the Secretary of State to specify further conditions that will constitute a position of trust. The power is subject to the affirmative Parliamentary procedure (clause 135(2)). Subsection (2) may apply where the child is detained following conviction for a criminal offence, for example in a secure training centre or a young offenders institution. Subsection (3) applies to a wide range of settings in which young people are accommodated, including foster care; residential care (local authority, private or voluntary, including secure accommodation); and semi-independent accommodation. Subsection (4) covers places where young people with medical conditions, physical or learning disabilities, mental illness or behavioural problems might be accommodated and includes NHS, private and voluntary accommodation. Subsection (5) covers where the child is receiving education in an educational institution. This expression is further explained at subsection (4) of clause 24. Where the child is registered at a college but receives education at another college with which the former has arrangements, A will still be in a position of trust in relation to the child where A works at the former college. Subsection (6) includes persons such as Connexions personal advisers ("CPAs"). Contact "by other means" (clause 24(3)) is designed to include persons such as CPAs whose normal means of providing support to children is by telephone or via the Internet. Subsection (7) covers personal advisers appointed by a local authority under the Children Act 1989. Such personal advisers generally provide help and support to children aged 16-17 who have been in local authority care. Subsection (8) includes adults who supervise children under bail supervision, a community sentence (for example a probation order, combination order, community service order, supervision order, attendance centre order) and those under conditions following release from detention following a criminal conviction (e.g. those released on licence from a young offenders institution) This would include members of Youth Offending Teams provided they have sufficient contact and connection with the child or someone providing counselling or drug rehabilitation services to the child pursuant to the terms of a court order. Clause 25: Sections 18 to 21: marriage exception 24.     Clause 25 provides that A will not commit an offence under clauses 18 to 21 if he can prove that, at the time of the sexual activity, he and the child were lawfully married. Clause 26: Sections 18 to 21: sexual relationships which pre-date position of trust      25.     Clause 26 provides A with a defence to abuse of position of trust offences if he can prove that his sexual relationship with the child pre-dated his relationship of trust with the child. So if A could prove that he and the child had a sexual relationship before A went to work at the school at which the child is a pupil, he would not commit an offence by continuing that sexual relationship. The effect of subsection (2) is to limit this to the situation where the sexual relationship that pre-dated the relationship of trust was lawful, so it would not cover for example a relationship with a child of under 16. Clause 27: Sexual activity with a child family member 26.     Clause 27 makes it an offence for a person (A) intentionally to touch a family member (as defined in clause 29) aged under 18 where the touching is sexual. The definition of touching is at clause 80 (6). It covers all forms of physical contact including sexual intercourse. The definition of sexual is at clause 79. Additional elements of the offence are that A must know or reasonably be expected to know that the child is his family member and, except where the child is under 13, he must not reasonably believe that the child is 18 or over. Either of these might apply where A has not met the child before and therefore does not realise that she is his half-sister and does not know her age. In relation to both these elements A is under an evidential burden (subsections (2) and (3)). This means that unless A shows from the evidence that there is an arguable case about these issues, it is presumed that he did not reasonably believe the child to be 18 or over and that he knew or could reasonably have been expected to know that the child was his family member. Whether or not the child consented to the touching is irrelevant. Clause 28: Inciting a child family member to engage in sexual activity      27.     Clause 28 makes it an offence for a person (A) intentionally to incite a child family member (defined in clause 29) aged under 18 either to touch A or to allow himself to be touched by A, where the touching is sexual. The definition of touching is at clause 80(6). It covers all forms of physical contact including sexual intercourse. The definition of sexual is at clause 79. An example of this offence would be where A encourages B to masturbate A or cajoles B into agreeing to have sex with him. The offence is committed whether or not the sexual touching takes place. So where in the above example A has encouraged B to masturbate him, but the masturbation does not take place because another person enters the room, the offence is nevertheless complete. The two additional elements of the offence (and the evidential burdens) described in relation to clause 27 apply to this clause too (subsections (1)(d) and (e), (2) and (3)). Whether or not the child consented to the activity being incited is irrelevant.

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Prepared: 20 June 2003